282
Teaching Law Students, Judges, and
the Community:
Rational Sentencing Policies1
Robert J. Levy
I devoted a great deal of my teaching energy during the last ten years of
my tenure at the University of Minnesota Law School to a course I called
the Sentencing Workshop. The Workshop provided a unique opportunity for
law students and judges to learn from each other about the intricacies, the
successes and failures of the American criminal justice sentencing structure
and practice. I will describe it in three phases: initially, to give some context, I
will report a dramatic Workshop discussion which occurred the fifth or sixth
year the course was offered. A short summary of the program’s mechanics
follows, followed by an anecdotal and analytic picture of the Workshop’s
pursuit of its several educational missions.
I
There were 27 people sitting around a large oblong of conference tables. It
was an unusual law school class: eight trial judges, four from South Carolina,
four from Oklahoma, and 13 students. The teaching “team” included the
Minnesota public defender, a well-known local corrections consultant, and a
former prosecutor now in private practice.
Robert J. Levy is the William L. Prosser Professor of Law Emeritus, University of Minnesota.
1.
This paper is the written version, with a few stylistic amendments and corrections and
with some but not all footnotes updated, of a public lecture delivered at the University of
Minnesota Law School on Oct. 11, 1996, on the occasion of the presentation to me of the
William L. Prosser Chair in Law. The Workshop was offered at Minnesota for 15 years,
until my retirement in 2001. Eventually, seven other law schools added the program to their
curricula more or less as it is described here. The program would not have been possible had
the late Dan Freed, an enormously talented and innovative teacher, not been willing to share
with me the method he devised for combining educational opportunities for law students
with continuing education for judges. For my own continuing interest in the sentencing
of criminals, I am indebted to the late Caleb Foote, my long-time friend, co-author and
severest critic, who introduced me to the pains and pleasures of criminal law as an academic
endeavor, and whose decency, fine intelligence, and sense of moral outrage about unfair and
undue punishment of criminals I have tried to emulate. See Robert J. Levy, Caleb Foote: A
Personal and Loving Remembrance, 12 Berkeley J. Crim. L. 127 (2007).
Journal of Legal Education, Volume 63, Number 2 (November 2013)
Teaching Law Students, Judges, and the Community
283
Each participant had received a large “casebook” consisting of the available
file material (excluding the actual sentence) for at least one defendant
sentenced by each of the judges. Each participant had read the files, each (other
than the actual sentencer of a particular defendant) had sentenced each of
the defendants and had written an “opinion” explaining the sentence. A “box
score,” a short summary of all participant sentences, had been prepared by the
students; and the box scores, the sentences and accompanying memoranda, a
169-page package, had been sent to each participant. As they sat around the
table that morning, then, all participants were fairly familiar with each case
and with other participant’s sentences and reasoning.
The participants had met once before, five weeks earlier, and discussed a
separate group of cases. The first weekend, like this one, began on Thursday
evening with dinner, lasted until Sunday morning and included almost
constant social and intellectual interchange. In short, each participant had
already learned a considerable amount about the others’ backgrounds,
experience and attitudes about sentencing and corrections.
I expected that the Crocker case,2 from South Carolina, would stimulate
controversy. The 30-year-old defendant had pleaded guilty to four counts of
burglary.3 The defendant’s house break-ins were, to say the least, unusual—
they appeared to have been committed to permit him to fondle the feet of
inhabitants while they slept. Because of his behavior, Crocker was quickly
shifted from jail to the forensic unit of the state hospital.4 The defendant
was found to be sane, but suffering from “major depression with psychotic
features,” an “obsessive compulsive disorder and paraphilia . . . and sexual
sadism.” He presented “evidence of recurrent obsessions about negative
events happening to his family members,” neutralized by “spitting in his
bed at nighttime repeatedly,” “a sexual preoccupation with feet,” and “other
sexual fantasies that are more sadistic in nature.”5 While hospitalized for an
appendectomy, Crocker had been discovered in the hospital morgue feeling the
feet of a corpse. During his state hospital stay, Crocker’s depression as well as
his psychosis improved; but, “despite high doses of appropriate medications,”
the obsessive compulsive disorder did not improve. The doctors concluded
that Crocker required specialized treatment for his sexual sadism—treatment
available only at a private hospital in Atlanta, Georgia. The doctor informed
the trial judge that if the defendant “did not receive treatment he would either
2.
Needless to say, the defendant’s name has been changed to protect his privacy.
3.
As is true of procedural and substantive issues in other cases described in this essay, some
of the Crocker charges have been simplified and others eliminated. Crocker, for example,
was actually charged with one count of first degree burglary (with violence), three counts of
second degree burglary, and two counts of driving with a suspended license. He pleaded to
the two driving counts and four counts of second degree burglary. In addition, to save space,
some medical diagnoses have been shortened and simplified.
4.
His jail cellmate promptly committed suicide—only one of the many mysteries of this case.
5.
On one occasion, Crocker had attempted to order a tear gas gun to help subdue a victim,
but had not actually acquired the weapon and had never otherwise acted on his fantasies.
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Journal of Legal Education
be killed, commit suicide, or kill someone”—but that the cure rate “would be
about eighty-five percent, if he completed his counseling.”
The “box score” for the Crocker case showed great differences among
Workshop sentencers. All but one of the judges chose an incarcerative sentence,
varying from an unspecified period to 35 years. The student sentences were as
varied: one student recommended a form of fine; their incarcerative sentences
ranged from one to ten years.
Workshop discussions usually began by resolving the case’s factual
ambiguities. The sentencing judge stated that the Georgia treatment facility
was not a realistic alternative because no post-hospitalization control of the
defendant could have been maintained. But he admitted that the defendant’s
sentence could have been suspended on condition that he be returned to
the court for sentencing at the end of the hospital’s treatment. The judge
also disclosed that the defendant’s family had agreed to pay the cost of
hospitalization in Georgia. The former prosecutor suggested that sending this
defendant to prison was in fact a death sentence. Then, when asked directly,
the sentencing judge disclosed that he had sentenced Crocker to 16 years in
prison.
I saw, or thought I saw, the judge give a small, tight smile. Oppressed by
my vision of this unfortunate defendant and his problematic future, angry
that a sentencer might be pleased with himself for imposing under-the-table
capital punishment, I was ready for a confrontation. Yet I let the opportunity
pass. Had I really seen a smile? Or just one more of those many masks judges
wear—this one to disguise his discomfort with the need to fulfill his civic
responsibility at such awful personal cost to a hapless criminal? If I was wrong,
I’d cause a row and might do some harm. Or was I afraid to pick a fight?
The dramatic quality of the case, the emotional intensity of the discussion, led
some of us irresistibly to such personal questions—and others to more abstract
professional introspection.
We spoke no more about the Crocker case—but we learned many and varied
lessons that day—lessons about criminals and their pasts and futures, about
judges and their values and methods, about law and life. I won’t try to recount
those lessons; rather, I will focus on the Workshop’s methods of inducing and
facilitating them.
I cannot do justice to the Minnesota Sentencing Workshop without pausing
to outline the desperately serious social and legal problem that drives it—our
impoverished correctional system and its overcrowded prisons. Consider a few
randomly chosen facts. Although the crime rate has remained fairly stable in
recent years, the number of prisoners, state and federal, doubled between 1980
and 1990: In 1980 there were 23,779 federal prisoners; in 1994 there 95,034.6
6.
See U.S. Department of Justice, Sourcebook of Criminal Justice Statistics (1995) [hereinafter
Sourcebook]. In 1980, there were 23,779 federal and 295,819 state prisoners; in 1990 there
were 58,838 federal and 684,544 state prisoners. Id. at 548 tbl. 6, 11. In 2009, the comparable
figures were 208,118 federal and 1,405,622 state prisoners. Most of the obviously dated
statistics in the text have been retained so that readers can know the scope of the problem
Teaching Law Students, Judges, and the Community
285
At the end of 1994, there were more than 1.4 million persons incarcerated in
prisons and local jails and at least 29 state and federal government prison
systems were operating at above their rated capacities.7 In 1995, California had
134,718 prisoners in facilities designed for 77,884; the prediction at that time
was that by 2000 there would be 214,963 prisoners.8 Meanwhile, California
state spending for prison administration was 9 percent of the state budget
in 1994, but was predicted to increase to 18 percent by 2002.9 In 1994, the
incarceration rate for African-Americans was seven times the rate for white
defendants.10 In 1980, drug offenses accounted for 19,000 state prisoners; in
1993 they accounted for 186,000.11 American sentences are out of all proportion
to sentences for similar crimes in the Western Europe countries to which we
as of the time this speech was delivered and decide for themselves whether the problem is
larger or smaller today.
7.
Id. See also http://www.justice.gov/jmd/2011justification/pd/fy11-bop-se-justification.pdf
(“BOPfacilities are very crowded—36 percent above rated capacity system-wide as of January
21, 2010. Over 171,000 of the current federal inmate population are in facilities operated by
the BOP, which are intended to house only about 125,811”).
8.
See Sourcebook, supra note 6. When a federal lawsuit was filed in 2001 complaining that
overcrowded prison conditions in California violated rights of prisoners, the prison
population was approximately 156,000 in facilities designed to house a population of just
under 80,000. A three judge federal district court held that these conditions violated the
Fourteenth Amendment and ordered the state to reduce the prison population to 137.5
percent of design capacity. The three judge court order was affirmed by a divided Supreme
Court in Brown v. Plata, 131 Sup. Ct. 1910 (2011).
9.
Peter W. Greenwood, et al., Rand Research Review: Focus on Crime and Drug Policy,
Three Strikes, Serious Flaws and a Huge Price Tag 2 (RAND Corp. 1995).
10.
For a contemporaneous account of the continuing racial disparities in American criminal
justice administration, described as “rife with inequality,” see William J. Stuntz, Unequal
Justice, 121 Harv. L. Rev. 1970, 1971 (2008) (“African Americans constitute 13 [percent] of the
general population, but nearly half of a record-high prison population. The imprisonment
rate for Latino males is almost triple the rate for white males; black men are locked up at
nearly seven times the rate of their white counterparts. The differentials in drug punishment
are even larger: of every 100,000 black Americans, 350 are imprisoned on drug charges; the
analogous figure for whites is 28.”) (Citations omitted).
11.
See also E. Blumenson & E. Nilson, No Rational Basis: The Pragmatic Case for Marijuana
Law Reform, 17 Va. J. Social Prob. & the Law, 43, 48, 59 n.64, 65 (2009) (Approximately 25
million Americans used marijuana during 2008; in 2001, 4,000 defendants received federal
prison sentences for marijuana offenses and approximately 11,000 received state sentences;
in 2006, 43.9 percent of the almost two million arrests for drug abuse violations were for
marijuana.).
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turn in making quality of life comparisons.12 And there is much, much more.13
In short, by almost any measure, American incarceration policies unduly
strain our financial and human resources and may well be placing too heavy a
burden on us and on the next generation.14
12.
See Michael Tonry, Intermediate Sanctions in Sentencing Reform, 2 U. Chi. L. Sch.
Roundtable 391 (1995). Comparisons to other countries take no account of the occasional
absurdly lengthy sentences imposed in some states—such as the Oklahoma case in which a
jury sentenced the defendant to a 10,002 year consecutive sentence. Bill Braun, Jury Gives
Rapist 10,002 Years, [Tulsa] Trib. & World, Apr. 18, 1996, at A9. Lengthy sentences in federal
prosecutions for child sexual abuse are regularly approved in federal Courts of Appeal. See,
e.g., United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (trial judge’s 17 year prison sentence
reversed; trial judge instructed on remand to impose proper sentence of 30 years in prison);
United States v. Seljan, 547 F.3d 993 (9th Cir. 2008) (defendant more than 80 years old
sentenced to 20 years); United States v. Zastrow, 534 F.3d 854 (8th Cir. 2008) (73 year old
defendant sentenced to prison for 20 years).
13.
See also United States v. Dyce, 78 F.3d 610, 616 (D.D.C. 1996). First time offender, single
occasion drug courier given five year sentence because her “family circumstances” were not
deemed “extraordinary” within the meaning of a federal sentencing guidelines criterion
for downward departure from guideline, despite the fact that defendant had two young
children and a baby she was breast feeding, since older children could be cared for by other
adults in the family and sentence could be postponed until after the baby was weaned. A
member of the appellate panel commented: “The unfortunate fact is that some mothers are
criminals, and, like it or not, incarceration is our criminal justice system’s principal method
of punishment. . . . A term in jail will always separate a mother from her children.” Id. at 617
(concurring opinion).
14.
When this speech was given, as is the case today, academic as well as popular literature
was full of criticism of state and federal legislative and judicial sentencing policies
(and, of course, the consequent overcrowding of state and federal prisons). For a recent
illustration, see D. Cole, Can Our Shameful Prisons be Reformed?, N.Y. Rev. Books 41
(Nov. 19, 2009). See also Randal C. Archibold, Driven to Fiscal Brink, State Opens Prison
Doors, N.Y. Times, Mar. 24, 2010. A very significant segment of the academic community
interested in reform supported and continues to support (despite what some see as an effort
by the U.S. Supreme Court to undermine it) the “Sentencing Guidelines” movement,
begun in a few states and given enormous weight by its adoption by the U.S. Congress.
The movement was undergirded by widespread opposition to individual judges’ extreme
variation (and more than occasional harshness) in exercising their sentencing discretion.
For early and biting criticism of the federal guidelines, see Albert W. Alschuler, Disparity:
The Normative and Empirical Failure of the Federal Guidelines, 58 Stan. L. Rev. 85 (2005).
For a fair history of the Guidelines “movement,” an accurate account of the vast literature
produced by advocates and opponents, a description of the dismantling of the federal
guidelines by the U.S. Supreme Court, as well as a thoughtful and objective analysis of the
sentencing problem and support for a carefully limited guidelines approach to sentencing,
see Robert Weisberg, How Sentencing Commissions Turned Out To Be a Good Idea, 12
Berkeley J. Crim. Law 179 (2007). See also Kevin Reitz, The New Sentencing Conundrum:
Policy and Constitutional Law at Cross-Purposes, 105 Colum. L. Rev. 1082 (2005); Kevin
Reitz, Modeling Discretion in American Sentencing Systems, 20 Law & Pol’y 389 (1998).
(Professor Reitz was the reporter for the American Law Institute’s Model Penal Code:
Sentencing, Plan for Revision, an effort which adopted a kind of guidelines system, but
much less complex than the federal one.) Although I suspect that most guidelines advocates
would disagree, I believe the Workshop program is consistent with any guidelines system
that contemplates a sufficient number of broad, discretionary “downward departure”
categories—of a kind that would permit trial judges to “depart” substantially (e.g., deviate,
almost always, to a lower period of incarceration) from the legislatively or sentencing
Teaching Law Students, Judges, and the Community
287
Let me say something about the Workshop goals. Sitting across from me
in a restaurant after two full days of the first Workshop session, one of the
Oklahoma judges—an infrequent talker, apparently a little skeptical about the
discussions, and a stern sentencer—asked me quizzically: “What’s the ‘real’
agenda here?”15 “Whose agenda?” I responded, “The Edna McConnell Clark
Foundation’s, the law school’s or mine?” The Foundation wanted influential
judges to understand the costs and dangers of overcrowded prisons and the
virtues of what is often called alternative punishment, hoped the judges
would be influenced to make greater use of nonincarcerative sentences and
would persuade their colleagues and communities that prisons are precious
correctional resources to be used only where necessary but certainly less
frequently than they were currently being used. The law school’s agenda
was quite different since it is in the business of educating law students. With
financial help from the Foundation, the law school believed that students would
learn more about criminal law from the Workshop than we could squeeze into
courses with more credit hours; and students would also be educated about
judging, relations between lawyers and judges, and about professionalism. My
agenda was even broader than the law school’s: in addition to educating law
students, I wanted judges to have leisure from the time constraints of their
dockets, from the pressures put on them by prosecutors, defense counsel and
reporters; I wanted to help them to explore their sentencing methods and,
with the aid of their colleagues, to decide whether they are satisfied or might
want to consider changes.
Perhaps I should also have described my personal correctional values. But
that would have been duplicative—in facilitating the discussions I could not,
and didn’t try, to hide my own values. The judges knew that I believed our
prisons and the lengthy sentences imposed by judges are a national disgrace;
that the extreme length of too many criminal sentences can be explained more
by politics than by sound policy; and that overcrowded prisons and extremely
commission determined guideline sentence in cases of the kind described in this essay. Of
course, supporters of guideline orthodoxy would complain that broad downward departure
provisions will produce the kind of indeterminacy that in the past has produced great
sentence variations for similar criminal behavior and harsh sentences imposed by “tough”
judges. For some indication that, both before and after the U.S. Supreme Court freed
federal trial judges from the mandatory features of the federal guidelines, not all federal
judges agreed with their policy underpinnings, see, e.g., Peter Lattman, In Galleon, Prison
Term Seen as Test, N.Y. Times, Sept. 20, 2011, at B1. “Judge Rakoff . . . sentenced . . .a
former health care company executive facing an 85-year sentence under the guidelines, to
three and a half years in prison. . . . Judge Rakoff wrote that the proposed sentence exposed
the ‘utter travesty of justice that sometimes results from the guidelines’ fetish with abstract
arithmetic.’” In another case, Judge Rakoff sentenced a defendant to four years in prison
when the prosecutor recommended a Guidelines determined sentence of six and a half to
eight years with the comment that “the guidelines give the mirage of something that can
be obtained with arithmetic certainty.” Peter Lattman, Defendants Sentenced in Insider
Trading Case, N.Y. Times, Sept. 22, 2011, at B3.
15.
Unless otherwise noted, all participant quotations in this paper are approximate and from
memory.
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lengthy sentences inhibit the creation and substantial use of alternatives to
prison for punishing criminal behavior.16 Sentencing guidelines can increase
uniformity and limit to some extent excessive imprisonment, but we must find
a way to insure that sanctions will always be “the least restrictive necessary to
achieve their purposes.”17 Sentencing judges should distinguish professional
criminals from those who, although they commit crimes, even violent crimes,
do so for reasons like hunger, poverty, mental illness, brain dysfunction or
other disability, ignorance, or a craving for drugs or alcohol. I hoped that
the judge knew and I was sure he would eventually conclude, that I would
never try to impose what some would consider these radical views on other
participants in the Workshop.
II
The University of Minnesota sentencing seminar and Workshop was an
unusual law school curriculum offering; it carried five credits, mixed students
with judges, prosecutors, defense counsel and correction officials, fed the
students and took them to such exotic places as Claymore and Paul’s Valley,
Oklahoma, where they spent time with a judge on the bench and learned
about another state’s criminal justice system at first hand.
During the first semester we conducted a fairly traditional sentencing
seminar, addressing theories of punishment, guideline sentencing, day-fine
experiments, jails, home detention, electronic monitoring, and the like. The
students also visited a state prison, heard from directors of drug and sex crime
treatment programs and from those who administer community punishment
programs of a variety of kinds. By the end of the semester the students
understood most current sentencing schemes as well as the national crisis
caused by our incarceration policies.
During the first semester, judges were chosen for the Workshop by state
officials. Each of the judges provided file materials on six defendants he or she
had sentenced. The cases were often complex because we specifically asked
the judges for cases they had found difficult to sentence. The first session’s
16.
See Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. Chi. L. Rev. 591, 592
(1996) (describing the theory of “failure of democratic politics” as the “conventional answer”
to the public’s resistance to alternative sanctions: “Members of the public are ignorant of
the availability and feasibility of alternative sanctions; as a result, they are easy prey for
self-interested politicians who exploit their fear of crime by advocating more severe prison
sentences. The only possible solution, on this analysis, is a relentless effort to educate the
public on the virtues of the prison’s rivals.”) Id. Professor Kahan claimed that the public’s
resistance to alternative sanctions is better explained by their failure to satisfy the “expressive
dimension” of punishment. Id.
17.
Norval Morris, The Future of Imprisonment 59-62, 73-76 (Univ. of Chicago Press 1974).
Morris described the notion as sentencing “parsimony.” Id. at 60. For an analysis of the
competing meanings of the term, see Richard Frase, Sentencing Principles in Theory and
Practice, 22 Crime and Justice: A Review of Research 363 (1997). For a recent, and very
explicit and sarcastic, rejection of the notion of sentencing “parsimony,” see United States v.
Irey, 612 F.3d 1160, 1196 (11th Cir. 2010).
Teaching Law Students, Judges, and the Community
289
cases were chosen and arranged to assure continuing participant involvement
and coverage of a wide variety of crimes and defendants’ and situations. They
also assured at least one opportunity for the judges to show that in particular
cases and classes of cases students injected their personal values into the
sentence just as much as they believed judges do. In fact, the students usually
sentenced defendants accused of rape, sexual abuse of children and vehicular
homicide much more harshly than they sentenced defendants accused of other
violent crimes and much more harshly than the judges sentenced these same
defendants. The second session discussed participants’ sentences of a new set
of defendants previously sentenced by participating judges.18
The third session materials differed substantially. Each of the judges was
initially asked to find a current case in which an unsentenced defendant
seemed slated for a prison term. When a suitable case involving a substantial
offense had been selected, a “client-specific planner” was hired. The planner
investigated the case and resources in the community, and prepared a report
recommending some kind of punishment. Client-specific planners, specially
trained and highly skilled criminal corrections experts, prepared presentence
investigation reports essentially oriented to the defendant’s individual
background with the goal of punishing without incarceration. Participants
received files of these cases after they had sentenced the defendants, and then
having read the client-specific plan, could recommend a different sentence.
The client-specific planner attended the last session.19
18.
At each session, the core group usually expanded to include a variety of criminal justice
professionals from states which had adopted sentencing programs or states considering
whether to adopt one.
19.
Client-specific plans differ in a variety of respects from traditional, and frequently
prosecution oriented, pre-sentence investigations. First and foremost, CSPs are, as indicated
above, defendant- and non-incarceration oriented, while always making it clear that the
recommendation is not an effort to allow the defendant to evade punishment for the crime.
Unlike most probation officers, the planner, typically a trained criminal justice sentencing
expert (either self-employed or an employee of a private agency), makes use of resources
in the community generally unknown to corrections professionals that emphasize both
punishment and rehabilitation—for example, private and/or publicly financed in-patient
alcohol or mental health treatment facilities. Planners also help connect the defendant
to the resource before the judge is scheduled to sentence as well as facilitate a mutual
commitment by both the defendant and the resource to work together—thus increasing the
likelihood that the judge will accept the recommendation. The planner also looks for and
usually finds a stable member of the community who knows the defendant and is willing
to take some responsibility for the punishment and rehabilitation process, thus helping to
minimize the judge’s fears of allowing the defendant to remain in the community. Even
if client-specific planners and their plans played no role in persuading Workshop judges
that non-incarcerative sentences can succeed, they would still be enormously useful; they
show judges how much help good pre-sentence investigators (PSIs) could provide in
seeking just and individualized sentences. Showing judges that they should and need not be
satisfied with the status quo encourages them to seek improvement in their own presentence
evaluation systems.
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III
The formal Workshop sessions were fun—as good law school classes are
fun for well-prepared students. We discussed the cases and the individual
defendants, how fair and just sentencing principles should be applied,
community understanding and acceptance of judges’ roles, prosecutorial
discretion and its impact on judges, and judicial authority and its impact on
prosecutors. The discussions informed participants about these issues and
about varying approaches to them from state to state. Occasionally, judges
learned for the first time about correctional resources available in their
own states.20 The judges were bombarded with interesting and challenging
nonincarcerative sentencing options for their cases—from home confinement
and day fines to a variety of other forms of supervision.21
But the discussions went deeper. They created an atmosphere of collegial
inquiry, of shared purpose and joint responsibility—for the issues and for each
participant. The formal sessions and collective meals fomented a kind of social
and intellectual camaraderie and friendship. Inevitably, students shared with
the judges aspects of their professional and personal lives, and the judges
(perhaps in a more guarded fashion) reciprocated. In such an intimate setting,
outside the hierarchical atmosphere of the courtroom, professional exchange
can be seasoned with personal disclosure. During a discussion of mandatory
minimum sentences for drug offenders, for example, a student announced
that her sister was about to be released from a state prison at the end of a
five-year sentence for dealing drugs. And one student insisted that prisoners
know about and adapt their behavior to state sentencing grids and policies—
and he was sure of his facts because he had twice served prison sentences in
Minnesota before being scared straight in a Georgia lock-up waiting for another
sentence. On these occasions, when the usually unmentioned personal worlds
of Workshop participants overtly intruded upon the discussions, the large
role that sentencers’ backgrounds and values play in their sentences became
obvious. In addition, in such circumstances, the judges found it difficult to
avoid feeling a kind of avuncular responsibility for the students’ education
and long-term professional development. Thus, the social relationships the
Workshop developed were vital to their method and their success.
But intimacy and free exchange are only the conditions precedent for the
kind of education the Sentencing Workshop sought—to challenge judicial
belief systems. I have come to believe that as sentencers, judges develop a
20. See infra pp. 18-20.
21.
Consider a case reported by a Missouri judge at the first Minnesota Workshop session. A
recommendation was made that a retired and pensioned 78-year-old child molester, almost
certainly addicted to the powerful painkillers he was taking for a broken neck, probably
an alcoholic, and possibly suffering from a brain disorder, be sentenced to share his home
with a community—or defendant-financed—permanent companion rather than to the two
consecutive 15-year prison terms the sentencing judge had actually chosen. The rationale
was that the alternative sentence would save the community the substantial cost of the
defendant’s stay in prison and provide just as much safety for neighborhood children.
Teaching Law Students, Judges, and the Community
291
set of myths that provide cover for their professional selves. To understand a
judge’s sentencing decisions, then, students have to notice and appreciate the
roles played by these myths; to facilitate reconsideration of their sentencing
behaviors, judges have to be encouraged, even coaxed, to articulate the myths
and to free themselves from their power.
Initially, judges have to understand that judicial unanimity about how
to sentence any defendant, whatever the crime, is a fantasy. Awareness of
their fundamental correctional policy disagreements came as a surprise
and a disappointment to many of the judges. They were always noticeably
relieved when the box score showed their sentences to have been the same
or similar. One judge produced his own box score, insisting that there was
actually more judicial agreement about sentences than the student-produced
box score showed. And one of the judges from Missouri refused initially to
sentence any defendant sentenced by his colleagues because, as he wrote to
me, “I am not an appellate court; I do not exercise reviewing power over my
colleagues.”22 The atmosphere of the Workshop helped judges acknowledge
the very diverse sentencing world in which they operate—an essential first step
toward voluntarily setting aside their other professional defenses.23
One of the judges’ most powerful myths is shared by citizens generally—
that only a prison sentence qualifies as punishment; probation, no matter
what its nature or concomitants, does not. As Professor Kahan put the matter,
“Imprisonment is the punishment of choice in American jurisdictions.”24 It may
well be that widespread understanding and use by judges of “intermediate” or
22. The quotation is from a note sent to me as a substitute for the judge’s sentences for the first
session.
23. In the Workshop’s first year, the casebooks sent to the judges contained their sentences as
well as the other information about each case. Thereafter, because the tendency reported
in the text became obvious, the casebook version of the cases blocked out any mention of
the actual sentence. The judges’ sentences of other judges’ cases became considerably less
uniform.
24. Kahan, supra note 16, at 591. See also Norval Morris & Michael Tonry, Between Prison and
Probation: Intermediate Punishments in a Rational Sentencing Scheme 3-5 (1990): “At
present, too many criminals are in prison and too few the subjects of enforced controls
in the community. . . . [Commonly discussion] assumes that the norm of punishment is
imprisonment. . . . This is true neither historically nor in current practice. Most felonies are
not now punished by imprisonment. Prison may be the norm of punishment in the minds
of some citizens, but it is not to those acquainted with the operation of our criminal justice
systems. . . .” The authors remind readers that the term “alternatives” “gives false promise
of reducing the present overcrowding in American prisons and jails,” because “currently”
intermediate punishments tend to be imposed on offenders who would otherwise be given
a probationary or a suspended sentence rather than those who would otherwise go to jail
or prison. Id. at 4. Kevin Reitz, Michael Tonry and the Structure of Sentencing Laws, 86 J.
Crim. L. & Criminology 1585, 1595 (1996), detected “a world-weary tone [in one of Tonry’s
later books] in recognition that intermediate punishments have not been taking the country
by storm,” and attributed the change to recognition that the occasional “highly touted
programs” have been “drops in the bucket rather than sea changes,” and that the “most
visible proof of the failure of the intermediate sanctions movement to date is the unabated
velocity of the growth of American prisons.”
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“alternative” punishment correctional policies will eventually dispel this myth.
The fact that Workshop discussions focused so narrowly and intensely on each
defendant and his or her background and total situation compelled the judges
to think about each defendant as an individual whose punishment demands
careful and individualized consideration, no matter how far the offender’s
behavior may have strayed from community norms. The more a sentencer knows
about a defendant, the more difficult it becomes to impose any punishment—
especially an automatic prison term. In addition, the judges heard a variety of
serious proposals for punishment, many of which were limited to significant
nonincarcerative sanctions. That otherwise reasonable people, experts as well
as inexperienced students, sincerely believed that an intermediate punishment
can both effectively and justly replace an incarcerative one in a specific case
did much to legitimate such punishments. This dynamic influenced sentencers
during each of the Workshop sessions, helping to dispel the myth that only
prison produces punishment.25
The most important judicial myth is that judges have no power. To deal with
the pain of depriving men and women of their freedom and sometimes their
lives, judges insist that theirs is a world of slot machine criminal justice: Pull
the lever marked with the crime charged and the sentence will shortly appear
in the window. Judges’ first reaction to the Workshop was to ask why they
had been invited; they often insisted that the only key players in sentencing
are prosecutors and the legislature. In sentencing, the judges claimed, their
personal warrant is nonexistent, their discretion minimal—until they were
confronted with indisputable evidence of a more complex reality.
During a session in one of the early years, for example, one of the South
Carolina judges described a female defendant, a 34-year-old single mother with
two young children, a high school graduate, “obviously an addict, living on
welfare and SSI,” charged with conspiracy and distribution of crack cocaine.
The defendant had spent two days in jail before raising bail. According to
the judge’s description of the case,26 conspiracy carried a five-year penalty;
distribution of crack had just been amended to remove the mandatory aspect
of a 15-year sentence and $25,000 fine. Although the penalty had become
discretionary, “the amendment still left a prohibition against suspending any
portion of the sentence imposed,” the judge’s memorandum explained, and
this provision, the judge believed, “effectively eliminated the possibility of
probation on these charges.” The penalty for distribution of powder cocaine
25. See, e.g., the post-Workshop statement made to his colleagues by one of the judges who
participated in the Workshop’s first year, infra text following note 35. This myth, I believe,
continues to invigorate partially at least some of the academic support given to the
“sentencing guidelines movement” because it is thought to be the only way to cabin judicial
disparity in sentencing. For a short discussion of the situation in the federal courts, see supra
note 14.
26. Most of the South Carolina cases contained very little file material. At the time, trial judges in
that state “rode circuit” and had trouble obtaining files from local court systems. Most of the
cases considered in the Seminar were based on the trial judge’s memorandum reconstructing
the facts.
Teaching Law Students, Judges, and the Community
293
was the same as for crack without a mandatory minimum. The defendant had
a minor and inconsequential prior criminal record. The prosecutor dropped
the conspiracy charge in exchange for a plea to crack distribution. The presentence investigator (PSI) recommended a probationary sentence with
drug abuse treatment and intensive supervision. The judge tried to have the
defendant placed in a treatment facility, but discovered that the beds were
limited to males. In short, the judge made it clear that he did not want to
imprison this defendant. The judge deferred sentencing until he was to return
to the county five months later. By then the defendant “had gotten drug
treatment and appeared to be dramatically improved.” The prosecutor refused
to reduce the charge to distribution of powder cocaine so that the judge could
impose a probationary sentence. Although the judge’s report never specifically
criticized the prosecutor’s intransigence, he reported that he had sentenced
the defendant to only the two days she had served when first arrested.27
Two hours later, when we began to discuss judges’ power to persuade
prosecutors to accept what appears to them to be a proper sentence in a
specific case, the South Carolina judge, like the others, had no clue! The
judge was simply unwilling to understand, or perhaps only to acknowledge
to us, that he had deliberately and successfully undermined the prosecutor’s
supposed sole authority to determine the parameters of the penalty in this
case, and that undermining would undoubtedly have an influence on the
prosecutor’s cooperation with the judge in future prosecutions. Nor did the
other judges appear to appreciate how the judge-prosecutor power balance
had been rearranged. It is clear that there is professional as well as personal
emotional safety in assumed powerlessness—and it takes time and patience,
diplomatic student and faculty persistence, and the right atmosphere, to break
through that safety net.28 But when the personal and emotional style of the
27.
It has never been clear to me, no expert on South Carolina sentencing law, why the judge
could not have given a probationary sentence. The judge did indicate that he made a
practice of sentencing drug defendants to at least one year in prison because only with
such a sentence would they be eligible for in-prison treatment programs. For the Seminar’s
purposes, it was not necessary to unravel the legal issue.
28. On many occasions during Workshop sessions, judges from the same state disagreed about
the appropriate (or even legal) sentence for a particular defendant. Curiously, some of the
judges, disagreeing with their colleagues, insisted that they had to follow state legislative
discretionary sentencing guidelines because otherwise they would be left awash in a sea of
discretion. Yet one of the colleagues of the judge who made this explicit claim insisted that
he never consulted the state’s guidelines until he decided in the particular case what a just
sentence would be. There were many other occasions when seminar discussions indicated
that at least some judges know that special circumstances demand special sentencing styles.
In one South Carolina case, the defendant ”streaked” under the stands at a high school
football game, apparently to attract the attention of the female cheerleaders of the local
team. The defendant, a mentally disturbed individual who had not taken the medicine
which usually controlled his otherwise bizarre behavior, was “arrested” by members of the
local team and held for the police. When the circuit riding judge came to town for the
sentencing hearing, he was informed that the defendant was taking his medicine regularly
and that the courtroom was filled with angry parents of the offended cheerleaders. The
judge reported to the Workshop that he told the clerk to advise the defendant in court that
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Workshop helps judges to forgo such safety nets, they can and do reexamine
their community obligations as sentencers from a very different and more
sophisticated perspective.
Then there is the myth of sentencing consistency based upon a coherent and
articulable sentencing philosophy. After some initial collegial loyalty during
the first Workshop session, the judges began to disagree with, even criticize,
each other openly. The judges rapidly grasped the students’ sentencing
predilections and questioned them as to their motives and purposes. The
students, initially intimidated, learned to reciprocate, making good use of
clues about the judges’ values and their sentencing inconsistencies to identify
what participants from one year called personal “hot spots.” During a session
that year, for example, a Philadelphia judge, defending the lengthy sentence
he imposed on a defendant with several priors, explained, “I don’t believe
in second chances.” He awarded probation and every possible break to first
offenders, he said, but if they appeared before him again, on a new charge or
a probation violation, he insisted on the maximum. The second session’s cases
included sentencing by the same judge of a 40-year-old, calculating, articulate,
and very well dressed professional bank robber. An addict, the defendant
had a long string of priors but no lengthy sentence because he employed
notes to tellers rather than a gun and was able, when apprehended, to blame
confederates. Before the sentencing hearing, the defendant had signed up (but
had not yet begun) a respected in-patient drug treatment program. The judge
granted probation for the current offense on condition that the defendant enter
the treatment program, and waived revocation of probation on the priors. We
were never exactly sure what judicial “hot spot” this defendant touched. But
the students’ affectionate description of the judge thereafter as “One Chance
Charlie” served as a continuing reminder to him and the other judges that
sentences can be based upon covert, personal, idiosyncrasies.29
The “hot spots” of individual judges emerged fortuitously because of what
might be called the “chemistry” or the dynamics of the group. The process was
stimulated by the facts of the difficult cases, by the judges’ sentences, and by
the judges’ reactions to the sentences of other participants. The ordering of
cases within and between sessions also affected the chemistry. The first session
in the Workshop’s initial year, for example, began with a second degree
murder case that disrupted the students’ as well as the judges’ platitudes about
incarceration for violent crime. The defendant was a slight 15-year-old AfricanAmerican boy, “mildly mentally retarded” and attending classes in the ninth
grade. Three older friends and the defendant decided to steal the purse of a
woman coming out of a diner with her husband. Unfortunately, the boys did
he was sentenced to probation—and left town before the crowd could confront him.
29. The last case in one of our first sessions involved a sexual abuse charge. As I had expected,
the students’ sentences were extraordinarily harsh when compared to their sentences of
other defendants or the judges’ sentences in that case. One of the judges approached me
privately and said: “You just put that last case in the materials to show that the students’
sentences are as subjective and value laden as ours are!” I pleaded guilty.
Teaching Law Students, Judges, and the Community
295
not act until the woman was in the car. One of the boys threw a brick through
the passenger window, allowing the defendant to grab the woman’s purse.
Tragically, the brick sent slivers of glass into the woman’s carotid artery, killing
her. The boys split $20. The defendant was waived for adult prosecution and
charged with first degree felony murder—a capital offense in Missouri. The
defendant agreed to plead guilty to second degree murder and the prosecutor
recommended a minimum 15-year sentence, leaving to the judge the choice
between incarceration and probation. The defendant had been in jail for more
than nine months when he was sentenced. Psychological tests conducted for
the juvenile court transfer proceeding reported:
[T] defendant displayed . . . visual motor skills . . . equivalent to an average
child aged 10 years and 2 months. Results of personality testing indicated
that “[defendant] is a rather sad and lonely youth who has difficulty forming
adequate emotional attachments with other people. . . .
Refusing to grant probation, the judge spoke at length at the penalty
hearing, the transcript of which became part of the Workshop casebook. He
commented:
You know, I believe this young man is probably not going to benefit by going
to jail. I believe that he probably has a better chance of making something of
himself if I placed him on probation. I believe that. I certainly know that he
didn’t throw the brick. . . .
You know, the circuit attorney’s office, whose job it is to prosecute these cases,
they had an option . . . to agree to a lesser time in the plea agreement. They
could have made it a ten-year minimum, which is minimum for murder second
and robbery first, and they chose to up the ante from ten to fifteen years. . . .
I believe that the reason the circuit attorney did make that conscious
decision . . . was they believe [the defendant] is more culpable than perhaps
you [defendant’s counsel] believe he was. . . .
What you’ve got here is two innocent people who were minding their own
business and just doing what normal people do, grabbing a bite to eat after
they were working hard all day trying to make something of their lives. And
we have four or five youths . . . who just disrupt that entire situation.
They’ve taken somebody who was a productive citizen . . . and killed her, were
involved in killing her. . . .
[Y]our attorney can sit here and tell me everything positive about you—and
one thing he did tell me back in chambers is, hey, Judge, this is the first offense,
this is the first time this young man’s ever been in any serious trouble. And as
I told him, you picked one hell of a mistake to make.
If you would have picked a smaller mistake, and I know you don’t pick your
mistakes, but if your mistake would have been robbing somebody at gunpoint
and not hurting anyone or taking drugs . . . or stealing a car, or, you know,
stealing something out of somebody’s house, but the mistake you made is
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you took another human being and you were involved in causing the death
of that lady.
And, you know, I just can’t get past that. And I really have tried and I’ve come
up with fifteen different ways of trying to get this, you know, to make this
easier to swallow, but it’s not any easier to swallow for me. . . . These kinds of
cases just make me hate my job at times. I hate this . . . .
If I put you on probation, I’d feel terrible. If I put you in jail, I’d feel terrible,
and there’s nothing in between. And there’s nothing I can do here and maybe
this is not my—it’s not the system’s function to make me feel good when I
leave this seat and go back in my chambers, but there’s nothing I can do here
today to make me feel good.
We did not stop at that initial session to discuss the sentencing judge’s pain;
nor did we discuss the judge’s failure even to look for some other sentence
that might punish this defendant commensurately with the loss of life he
had helped to cause without subjecting him to the extraordinarily grave risks
to a young and physically vulnerable boy, not to mention the personal and
social consequences, of 15 years in prison. But the emotional quandary the
case posed for a sentencer, the judge’s openness about how difficult it was
for him to make what he saw as a Hobson’s choice and the resonance for the
other judges of this illustration of their sentencing dilemmas, set a tone for the
group’s discussions. The judges were compelled to confront rather than ignore
the choices they make when sentencing, the pain they cause themselves and
defendants when they impose “just desserts.” It was very difficult thereafter for
these judges to blind themselves to their awesome responsibility, to the power
over other people’s lives that responsibility authorizes, or to the personal
values they inevitably bring to the sentencing endeavor.
The second case that first year was decided by the judge who refused to
review his colleagues’ sentences. It involved a 22-year-old woman with a $1,100
a week cocaine addiction. Although she had only completed ninth grade, she
had managed to become a payroll clerk at a major company, responsible for a
monthly payroll of more than $400,000. To feed her drug habit, she embezzled
over $100,000 from the company. But by the time she was sentenced she had
successfully completed a drug treatment program, held a steady job, was
engaged to be married and the company had recovered more than half its loss
from its insurance carrier. A host of neighbors and friends had written letters
to the judge on her behalf.30 Yet the judge sentenced her to seven years in
prison and denied her the advantage of an unusual Missouri statutory “shock
30. This case illustrated two more of the myths sentencing judges live by: character references
are “a dime a dozen” and of “no consequence”—unless the judge decides to award the light
sentence they usually recommend, in which case character references are emphasized.
Similarly, a defendant’s “remorse” is of no consequence because all defendants are taught
by their lawyers how to present themselves to judges so a judge who decides on a harsh
sentence need not be constrained by the defendant’s remorse. If the judge wants to impose
a light sentence, a showing of remorse is emphasized. The game works as well with “absence
of remorse.”
Teaching Law Students, Judges, and the Community
297
probation” statute which would have allowed her to be granted parole after
120 days. A harsh sentence, certainly, one about which any group of reasonable
sentencers might well differ, and Workshop participants saw it as the value
judgment of a colleague entitled to respect but also to honest criticism. The
sentencing judge could not ignore the variety and contrariety of opinion—
whether or not he allowed it to affect him.31
During the second session, the “refuse to review colleagues” judge was
again the center of attention—this time for his sentence of three boys from a St.
Louis suburb, who, just before they graduated high school, had set fire to an
animal hospital because the owner had fired one of them. The fire killed three
dogs and caused $325,000 in insured damage to the building. The defendants
pleaded guilty to arson and burglary. Maximum sentences for the offenses
charged added up to 38 years.32 Sentencing was postponed at the instance of
defense lawyers until the boys had graduated from high school, participated in
a church-sponsored camp for poor children, and matriculated at branches of
the University of Missouri. The sentencing judge’s view of these defendants
was sympathetic according to his comments in the sentencing hearing
transcript:
Today I have to deal with people that I think almost are neighbors even
though you are from [another suburb of St. Louis]. . . . [T]here is no place
I have ever lived like [these two suburbs]. There is nothing that hurts more
than . . . what I am having to do today. Most of the time . . . what I have to do
just jumps out at me. You don’t get callous up here. I was the attorney for the
penitentiary system. . . . And I didn’t see anybody down there that I didn’t
think should be there. It was my job to keep them there.
With only one or two exceptions I enjoyed the job because I thought that’s
right where they should be. But I have tried to send what I think were my
quota of people down there that I don’t want to ever meet at [a local mall]. I
don’t want them ever to meet my wife in [our suburb] or ever want them to see
31.
The other cases for the first session of the first Workshop played on a variety of similar
themes. They included: a young church worker who took nude pictures of himself with
the children he was supervising, sentenced to five years in prison; a 25-year-old mother
of two young children charged with selling two $25 baggies of cocaine to an undercover
agent, sentenced to five years in prison despite the prosecutor’s agreement not to oppose
probation, denied “shock probation” because of the asserted importance of discouraging
the use of drugs in southwestern Missouri; a 32-year-old man, married with two children,
with six prior felonies but none within the last five years, who had fallen from the sixth floor
of a building he was helping to paint and suffered multiple fractures all over his body with
many consequential surgeries since, charged with shooting a friend in the back during an
unconsummated cocaine deal, sentenced to five years in prison; a 40-year-old woman caught
transporting marijuana through the county in the back seat of her car, sentenced to two
years in prison, suspended on condition of 30 days in the local jail. The Missouri judges’
sentences for the defendants in these cases were almost as varied as the facts of the set of
cases chosen for the session.
32. The Minnesota State Public Defender, a frequent visitor at Workshop sessions, put a sharp
edge on the conversation when he announced that he would have sentenced the boys to
prison because otherwise he would not have been able to look his own dog in the eye.
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my daughters walking down the street. . . . I am persuaded that you and your
cohorts aren’t that kind of person. . . .
This is as mean as anything I have ever seen. As senseless as anything I have
ever seen. I presume by now that you know that. . . .
The judge then suspended imposition of sentence for five years so that the
defendants, if successful on probation, would have no criminal record, on
condition that they serve 60 days in county jail (but only on weekends during
the summer), maintain employment of 30 hours a week during the summers
and a B average in their college schoolwork, graduate within four-and-a-half
years, stay out of bars and drink no liquor or beer, maintain a 10:00 p.m. curfew
and, finally, perform 200 hours of community service at a local animal shelter.
Was the young embezzler’s sentence fair? Or the arsonist’s?33 Are the
sentences consistent with each other under one or more of the (not necessarily
consistent) theories justifying criminal punishment? I cannot with any
assurance answer these questions; indeed, I suspect I could foment a lively
argument about any of them in any audience. In the collegially confrontational
atmosphere of the Workshop, though, students, faculty and the judge’s
colleagues were empowered to ask them—and they were entitled to reject
what they believed to be superficial answers. The judge could, of course, have
refused to reexamine his sentences or the moral and social policies underlying
them but there was no ignoring the choice.34 From such individual lessons,
delivered in an atmosphere where all participants have agreed to learn from
each other, delivered in respectful fashion, the judges can acknowledge new
perspectives.
In my effort to describe the Workshop’s methods I may unintentionally have
failed to give enough credit to individual judicial participants. Each Workshop
included judges who had personally led local initiatives to treat addicted
defendants, judges who were aware that personal values inevitably have an
impact but that objectivity and decency in sentencing can be achieved. On one
occasion, for example, a former juvenile court judge held forth at some length
and with discomforting vehemence that a 22-year-old addicted mother should
33.
All five of the other Missouri judges sentenced the defendant to five years probation
conditioned on 60 days of weekend local jail time. Remember that these sentences were
imposed by judges who had seen the actual sentence their colleague imposed. See supra
note 24 and accompanying text. Most of the students and nonjudicial visiting participants
(including the state public defender—despite his inflammatory opening comment) gave
similar probationary sentences, with conditioned jail time varying from eight to 120 days.
One student sentenced the defendant to prison for two years, to be served on holidays and
weekends.
34. The discussion of the arson case was somewhat intense as it involved what some perceived as
racial and gender sentencing differentials. At the end, though, the judge, a fine advocate if
mischievous, wondered aloud how Workshop participants would have sentenced the arsonist
if they had known he was Hispanic. Although the students knew that the defendant’s name
was some equivalent of “Brockingham Smythe,” a name no person in the room would have
identified as Hispanic, they were speechless. The judge’s assertion was neither challenged
nor clarified.
Teaching Law Students, Judges, and the Community
299
have had parental rights to her other children terminated because she failed
to obtain medical help for a six-month old daughter who had been severely
beaten by her boyfriend. One of the other judges commented, “Whenever I
suspect that I’m angry, I go home and put off sentencing for another day.” The
sermon was quiet, somewhat indirect, assigning neither blame nor shame; it
was difficult to ignore but easy to follow.
To summarize: The Sentencing Workshop sought to educate law students
about sentencing and judging. Simultaneously, it gave trial judges an
opportunity to explore their sentencing practices and policies. They collectively
examined their own cases in enough detail that the underlying personal and
emotional issues were sure to emerge. The surroundings allowed judges to
be honest with each other and know that whatever criticism their sentences
attracted was intended to be constructive. The criticism came from their peers,
from a faculty they had come to trust as helpful, and from inexperienced
students whose innocence excused their direct and bold style. Finally, the
learning was personal, very emotional, anecdotal as well as intellectual, and
without undue or embarrassing personal exposure. Such circumstances are
ideal for reassessments of any kind. The Workshop made no effort to seek or
impose conversions and no one’s basic values changed. Rather, the Workshop
sustained a friendly, tolerant, democratic exchange over a lengthy period
about matters that are vital to lawyers and to citizens generally. Each of the
participants learned important lessons from the others about different ways
of seeing the world and some of its inhabitants; many of the participants were
influenced to interpret the world more tolerantly as a consequence of the
exchange.
IV
And now, finally, a look at the “bottom line.” Reconsider the Crocker case
for a moment. Obviously, the Workshop did nothing to help that defendant.
But there are thousands of Crockers caught in our criminal justice system,
sad, poor, uneducated, benighted, beleaguered, addicted, alcoholic, lacking
self-control, confused, manipulative, even dangerous individuals. Even if we
could afford the prison space our punitive instincts and our popular culture
urge us to make available—and we know that we can’t—prison time won’t solve
our need for community safety from criminal depredation. Cases like Crocker
should teach us to look for other and more decent punishments to deal with
at least some crime and some criminals. Judges in our Workshop who looked
at the system saw that.
And what of the judge who sentenced Crocker? Did a “hanging” judge
have an epiphany, become wedded to treatment rather than incarceration?
No hanging judge—and no epiphany. But after the Workshop the same
judge sentenced an addicted 22-year-old mother after she pleaded guilty to
aggravated battery. Prior to sentencing, the case had the benefit of a clientspecific plan and a lengthy group discussion during the Workshop. The judge
followed the planner’s recommendation and ordered the defendant, with her
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consent and that of the program, to spend a lengthy period at Delancey Street,
a famed self-help and participant-run drug treatment program with a branch
in North Carolina.35
In addition, consider the following:
Item: One of the South Carolina judges, asked by his colleagues if the
Workshop was useful, answered: “I know that in general our society believes
that jail is always punishment; as a result of my time in Minnesota, I always ask
myself whether punishment always has to be jail.”
Item: After the program’s first year, a very conservative judicial participant
from southwestern Missouri told an assistant state corrections commissioner
in my presence (and here I am quoting my own report of the incident to the
Edna McConnell Clark Foundation):
It was not until a month or so [after the last Workshop session] that I realized
it was the most important experience I have had as a judge, and the most
useful one.
It was definitely the students who make the difference. . . . It was especially
uncomfortable when one of my cases was to be discussed. It was especially
bad for me because in my court and in my home what I say is the law. . . .
There I had to justify everything or change my mind. It was a difficult but
important experience for me.
I’m going to meet with [the state’s chief justice] and tell him to put his money
where his mouth is—if he wants us to use alternative sentences, he damn well
better make the resources available to us. I’ve now used Mineral Areas [a
drug treatment program] four times since April, and I never even knew of its
existence before I came to Minnesota.
And the judge’s assigned probation officer told the officer’s corrections
department supervisor that something extraordinary must have happened
because the judge had used his discretionary power to impose “shock
probation” more in the four months after the last session of the Workshop
than he had in his previous 11 years on the bench.
Item: One of the judges who attended the Workshop, who on his own
and with no funding, initiated a local treatment program and a variety of
alternatives to prison, wrote:
35.
It is true that the judge found it necessary to tell local reporters that he was to be informed,
“no matter where I am in the [s]tate,” if the defendant were to leave or be dismissed from
the Delancey Street program. Moreover, “the judge admitted he was ‘a little hesitant’ about
using the alternative sentence, reportedly the first of its kind in the state, but he said he was
willing to take a chance. ‘I decided to take a one-time, take-a-look approach to this program,’
he said at a special sentencing hearing. . . . [The judge] said he wouldn’t have touched it if
Delancey Street’s approach to alternative sentencing was a ‘feel good, touchy-feely program.’
He said his investigation found it ‘a tough program that demands full cooperation.’” Even
judges occasionally have to give their pronouncements favorable “spin.”
Teaching Law Students, Judges, and the Community
301
I must confess to a certain level of skepticism at the beginning of the 1996
Sentencing Workshop. After 21 years of judicial experience, I had an attitude
of “I’ve seen it all before.”
Having now completed the Minnesota Sentencing Workshop, I must say it is
equally true that I have never seen anything like it. The Workshop was far and
away the best educational experience I have known in the area of sentencing,
and I feel I have gained a great deal personally by participating.
The Oklahoma judges, including myself, have experienced a kind of bonding
with each other as a result of the Workshop.
Item: And here is a fairly typical response by one of the Workshop students:
This seminar will always be one of the most significant and impactful
experiences of my life.
(Even if you discount, as I do, evaluations delivered non-anonymously and
before grades are assigned, this has to be considered a positive judgment!)
The workshop was fun and educational for students and they rated it highly;
it received testimonials from judicial participants. But did the Workshop do
any good? And was it worth the cost? Fair questions. One Workshop visitor
drew up a plan for an empirical study to determine how judge-participants’
sentencing behavior changed after the Workshop and to assess whether, over
time, sentences to prison have decreased in the states whose judges have
participated. A decent study would probably cost more than the Workshop’s
budget for a number of years but it should certainly be undertaken. Pending
contrary findings, however, I will continue to believe that judges are crucial
actors in a criminal justice system paralyzed by political fear and public
ignorance and unable to obtain legislative solutions to an impending
correctional and social disaster. As sentencers in individual cases, judges can
help to lessen the adverse consequences. As respected opinion leaders in their
own communities and, collectively, as a powerful political force in their states,
judges can help to cure the paralysis. Judges certainly should help and the
Workshop motivates them to do so.
A personal aside: I was told that the very considerable time and emotional
energy I devoted to the Workshop took too great a toll—during the last five
years I could have made larger contributions to the law school’s scholarly
output if the Workshop were not part of my teaching load. And if the issue
must be drawn that narrowly that assessment is certainly correct. But the
problem is larger than academic politics. Even if criminals are not among the
citizens most deserving of improved situations, no one who knows what our
prisons are now like and what they are likely to become should doubt the need
for all of us to seek reform—for prisoners’ sakes and our own.